IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.4591/2016 BETWEEN:
1. RADHAKRISHNA MURTHY, AGED ABOUT 59 YEARS, S/O. OBAIAH, ASSISTANT GENERAL MANAGER, DENA BANK, THANE ZONAL OFFICE:
PUSHP KIRAN BUILDING, GOKUL NAGAR, OPPOSITE JARI MARI TEMPLE, THANE WEST - 400 601.
2. Y. BHASKARA RAO, AGED ABOUT 55 YEARS, S/O LATE Y.SUBBA RAO, CHIEF MANAGER, DENA BANK, K G ROAD BRANCH, MAHARASHTRA NIVAS BUILDING, SECOND CROSS, GANDHINAGAR, BANGALORE-560 009. ... PETITIONERS (By Sri.VENKATRAMANA M.K, ADV.,) AND:
1. THE STATE OF KARNATAKA, BY THE STATION HOUSE OFFICER, MADIWALA POLICE STATION, BANGALORE-560 032.
2. NISHAR AHMED ABUBAKKAR, AGED ABOUT 43 YEARS, S/O ABU BAKAR, PROPRIETOR:NEW METRO HOME APPLIANCES, R/A NO.1851, 12TH MAIN ROAD, SECOND PHASE, R P C LAYOUT, VIJAYANAGAR, BANGALORE-560 040. ... RESPONDENTS (By Sri.VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R1; R2 SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO. 6888/2016 ON THE FILE OF THE III ACMM, BANGALORE FOR THE ALLEGED OFFENCE U/S 448,341,420,120(B),506 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are accused Nos.2 and 3 in the charge sheet filed against them for alleged offences punishable under Sections 448, 341, 420 and 120(B) and 506 of IPC read with Section of 34 of IPC.
2. Petitioners have sought to quash the above proceedings on the ground that petitioner No.1 being the General manager and petitioner No.2 being the Authorised Officer under SARFAESI Act, had taken lawful action for recovery of the outstanding dues in respect of the mortgage loan availed by the complainant from Dena Bank. The allegations made in the charge sheet are malafide and ulteriorly motivated. The said allegations even if accepted, as true, do not amount to commission of offence by the petitioners herein. Thus, seek to quash the proceedings initiated against them.
2. Respondent No.2 is served and unrepresented. Heard learned counsel for the petitioner and the learned SPP-II for respondent No.1. Perused the records.
3. The allegations made in the charge sheet are that respondent No.2 had entered into a written agreement of sale dated 29.3.2012 with accused No.1 for a total consideration of Rs.1,66,60,000/- and had received an advance of Rs.86,00,000/-. But accused No.1 failed to register the sale deed in his name; instead, on 29.3.2012, accused Nos.1 to 3 trespassed into the house of respondent No.2-complainant, assaulted him and threatened him to sign on blank papers. Present petitioners are alleged to have threatened to institute a false case against respondent No.2.
4. The material produced before this Court indicate that respondent No.2 had availed a mortgage loan from Dena Bank by mortgaging immovable property bearing Site No.9 situated at 32nd Main, BTM Layout. In respect of the said property, notice was issued under Section 13(2) of the SARFAESI Act and a notice to take possession of the property was issued. Respondent No.2 challenged the said notices before Debt Recovery Tribunal in SA 572/2009 and by order dated 26.3.2010, the appeal filed by him was dismissed with costs. In the said order, it is observed that the pleadings put forth by the appellant as well as the respondent-bank and the documents available on record, disclose that respondent- bank initiated proceedings under the Securitisation Act by issuance of demand notice as well as possession notice which were served upon the appellant and as such the same were published in accordance with law. This order was passed on 26.3.2010 whereas the prosecution has come up with the allegation that in respect of the very same site bearing No.9 the complainant-respondent No.2 had entered into a written agreement of sale with accused No.1. It is quite un-understandable as to how the complainant can enter into an agreement with accused No.1 when the mortgagee bank had already initiated proceedings for enforcing the charge on the said property. These facts therefore clearly indicate that the petitioners had acted in accordance with law to recover the outstanding dues to the bank by taking recourse to the provisions of SARFAESI Act. Under the said circumstances, the prosecution of the petitioners based on vague and general allegations that at the instigation of the petitioners, accused No.1 trespassed into the property and under threat he was made to sign blank papers does not furnish a cause of action for respondent No.2 to proceed against the petitioners. The material collected by the Investigating Agency does not show that the petitioners have committed any of the above offences. In the said circumstances, the prosecution of the petitioners being illegal, baseless and obliquely motivated are liable to be quashed.
4. Accordingly, the petition is allowed. The proceedings in C.C.No.6888/2016 pending on the file of the III Additional Chief Metropolitan Magistrate, Bengaluru, are quashed only insofar as petitioners- accused Nos.2 and 3 are concerned.
Sd/- JUDGE *alb/-.